The following statement is an executive summary of our recent study of the costs and benefits and cost-effectiveness of Vancouver’s Supervised Injection Site (SIS) (Andresen and Boyd, 2008). After a review of existing literature regarding both the efficacy of supervised injection sites generally, and Vancouver’s site more specifically, we engaged in two kinds of analysis to determine benefit to cost ratios for the Vancouver SIS, and cost effectiveness: linear trend analysis and mathematical modelling. We were particularly interested in Insite’s ability to impact HIV infections and overdose deaths, as we were able to obtain reliable temporal and spatial data for each of these two variables.

Linear trend analysis was hampered by the small number of observations that we could make post-Insite; the inability to demonstrate significant changes with a three year time line, post implementation, compromised the utility of trend analysis. Nonetheless, we did observe some positive changes post-Insite in rates of HIV infection within the three local health areas in Vancouver that are closest to Insite (a reduction in rates of HIV infection), and correspondingly negative changes in trends in the three local health areas of Vancouver most removed from Insite (an increase in rates of HIV infection). These changes in trends did not, however, reach the point of statistical significance, and we are left with the observation that little can be concluded from a linear trend analysis of overdose deaths or HIV infections. Additionally, we were required to assume that new cases of HIV amount to a proxy for new HIV infections, and to assume a regional stability in rates of HIV transmission and corresponding rates of detection. In these circumstances any results from our linear trend analysis should be interpreted cautiously.

Mathematical modelling was much more usefully employed, as we have reliable data regarding the number of injection drug users in the area, the number of injections annually, both inside Insite and outside, the extent of HIV transmission, the rate of HIV infection, the rate of overdose death in the area, the extent of behavioural change produced by Insite, and the number of overdoses within Insite. In every instance we used highly conservative estimates, and we employed four different mathematical models that have been widely cited in the literature.

We were able to identify a range of ratios of benefits to cost, based on the four different models. The data suggest that Insite produces an annual return on its investment that varies between approximately one and four times its cost, based on the model employed, and the assumptions resident within that model. We stress that these ratios are substantial under-estimates of the benefit to cost ratios of Insite, as many of the likely benefits could not be factored into our equations because of incomplete data: we had no systematic method for calculation of improved health among users, resulting from increased access to detox and other treatment services, and we could not separate Insite’s fixed costs from its variable costs. Further, a number of expenses that are only tangentially related to the annual operation of Insite – addiction services, counselling, immunizations, and diagnostic services – are included in the calculations of annual costs provided by Vancouver Coastal Health. It must be stressed that our conclusions are, accordingly, based upon both an under-estimate of the full range of benefits, and an over-estimate of the annual costs of operation of the facility.

Our data suggest that both increases in the current operating hours for Insite, and the building of additional facilities of a similar kind would yield benefits much in excess of costs required for such projects. We also note, given these data, that facilities providing opiates for addicts (and hence avoiding many of the criminal justice system costs that could not be contemplated here) should be given serious consideration, given both the apparent success of such initiatives in a number of European jurisdictions, and the value added nature of the cost savings in such schemes. Finally, we note that our cost analysis of the SIS demonstrates that its benefit to cost ratios are very similar to those provided by other kinds of treatment for drug addiction – that Vancouver’s SIS is properly thought of as one of many beneficial approaches for this complex problem.

Executive Summary

The following statement is an executive summary of our recent report on the impact of Vancouver’s Supervised Injection Site (SIS) on public order in the downtown eastside neighbourhood in which it is located (Boyd, Kinney, McLean, Heidt and Otter, 2008). We have compiled two sources of data: a detailed spatial and temporal analysis of criminal offences in the affected neighbourhood and beyond; and an analysis of 80 responses from structured and semi-structured interviews with men and women who work and/or live in the downtown eastside neighbourhood: interviews with 20 residents, 20 police officers, 20 service providers, and 20 business operators.

In examining spatially generated data regarding criminal offences from 2000 to 2006, we have been able to test two competing hypotheses regarding the impact of the SIS on public order. The first hypothesis suggests that the site may have a negative impact on public order, achieved through what has been termed a “honey pot” effect; users and dealers throughout Vancouver, and possibly beyond, may be drawn to Insite — amplifying the kinds of disturbance that are typically associated with illicit drug use: drug dealing, property crime, prostitution and violent crime. The second hypothesis is one which suggests that the site has had no significant impact on the commission of criminal offences – that it has been constructed to respond to health concerns, and is unlikely to have an impact on the ongoing dynamic of illicit drug use and distribution.

Our detailed maps of various kinds of property crime and violent crime confirm a hypothesis of no impact. There are no significant changes over time in relation to the commission of criminal offences recorded by police in the study area (bounded by Water Street to the north, Keefer to the south, Cambie Street to the west, and Gore to the east). Further, there are no changes in the spatial distribution of crime that could be traced to the establishment of Insite. When we looked in detail at the year 2003, 12 months in which both a police city wide enforcement team was put into place (April) and Insite was opened (September), we found no significant relationships, either in terms of numerical counts of crime, or in the spatial distribution of crime, that could be traced to either initiative.

Past research efforts have found evidence of decreases in public injection and we are inclined to agree that this positive change in public order has occurred. While most injections still take place outside of Insite, the presence of the site has coincided with some modest reductions in public consumption; it seems probable that some amount of this change can be attributed to Insite. Additionally, an overwhelming majority of our interview subjects indicated that the smoking of crack cocaine represents a more significant social problem and contributes to more public disorder within the neighbourhood than does the injectable use of opiates. Changes in drug trafficking in the area both preceded and followed the establishment of Insite: an intensification in the market for crack cocaine, relative to injectable heroin.

When we asked those who work and/or live in the neighbourhood whether Insite has had a negative or positive impact on public order, approximately 60 per cent indicated that it has had a positive impact, 28 per cent indicated that it has had no impact, and 12 per cent indicated a negative impact; service providers, residents and business operators were most likely to express the view that Insite has had a positive impact; police officers were most likely to express the view that it has had not any impact.

When we asked whether, given a mandate of public order, Insite should be expanded, retained, modified or shut down, more than eighty per cent, including a slim majority of police officers, indicated that Insite should be either expanded, retained, or modified. More than 55 per cent of our respondents suggested that the expansion of Insite to other locations would have a positive impact on public order.

In sum, there is no compelling evidence to suggest that Insite has had a negative impact on public order, and, more specifically, there is no evidence to suggest that Insite has had any significant impact on either the rate or spatial distribution of criminal activity within the neighbourhood. There is evidence, however, that a clear majority of our sample of people who live and/or work in the neighbourhood view Insite as making a positive contribution to public order, and would like to see the service expanded, retained, or modified.

An excerpt from the transcript of discussions regarding The Tackling Violent Crime Act. We don’t appear to have been very convincing. The Senate passed the Bill with apparently little comment.

Senator Oliver: What does that case say about reverse onus?

Mr. Boyd: It is critical of reverse onus because of the issue of liberty.
Again, I understand what you are saying about care with respect to Charter compliance and so on, but this is really an issue of principle. As Canadians, we have traditionally not taken away individual liberty unless we discharge the traditional burden of proof in criminal cases. We should only deviate from that norm in exceptional cases.
I think the onus is on the government to make the case here. What is the data telling us about the dangerous offender provisions or, more specifically, about how these dangerous offender hearings have been conducted today? Are there 10 or 15 cases? Is there this great number of cases that we can point to to suggest that, see, courts have let very dangerous people go free? Where is the demonstrated need for this? I think we would all say we do not want to put something in place unless there is an extraordinary need to do so.

Senator Oliver: We have it already, and the Supreme Court of Canada has condoned it.

Mr. Boyd: You are just saying what is. I am talking about principle. You are trying to respond by saying these things exist.
Senator Oliver: The principle has been tested on grounds of constitutionality and whether or not it is Charter compliant.

Mr. Boyd: It has also failed in Smith.

Senator Oliver: The Supreme Court —

Mr. Boyd: It has failed in the Court of Appeal.

Senator Oliver: The Supreme Court of Canada has said yes.

Mr. Boyd: I want to take us back to the principle. The principle is if you are going to take away a person’s liberty, should we not, as a society, try to establish that person deserves that penalty of imprisonment, deserves to lose liberty on the basis of the traditional onus in criminal courts? This is not that a person has to prove he is not dangerous. How do you do that? It is for the Crown to prove that in fact this is a person who is dangerous.
Again, I would think that if I was the government I would be coming forward and saying here are the seven cases of dangerous offender hearings where dangerous people have not been declared dangerous, shows it is not working, we need this extraordinary remedy.
You are talking about, in Pearson, a completely different set of issues. We are talking here about dangerous offender hearings and about the need for this bill. Where is the evidence –

Senator Oliver: If you –

Mr. Boyd: — in support?

Senator Oliver: — read the preamble to this bill and you understand the principles set forth in the preamble of Bill C-2 that we are dealing with here and you look at interests such as public interest, community interests, and the interests of the public and public safety and so on, that is what the government is backing up. That is the background against which you must look at the reasons for why they are bringing in the reverse onus in this case.

Mr. Boyd: There is certainly a good deal of rhetorical flourish in the preamble that says these things, but whether they actually are there —

Senator Oliver: It is a preamble.

Mr. Boyd: Just because people say something does not mean it is so.

The Chair: Right. These exchanges are fascinating and valuable, but we still have a long list of senators who want to put more questions.
Can I put you down for a second round if we have one, Senator Oliver?

Senator Oliver: Yes.

Senator Di Nino: Mr. Rudin, I want to start by agreeing with you, sir. I want to start by agreeing with you that our attempts at rehabilitation, particularly in the prison system, have failed. That is what I said yesterday to the correctional services folks when they told us that nine out of ten inmates — residents of our prisons, if that is a better term — have offended before. We are not doing something right. I think that is absolutely true. Particularly I would agree with you that we are not doing something right with Aboriginals. There appears to be an imbalance there.
However, in agreeing with you there, I would also like to disagree with you on what I suspect you have said, that we should not have these longer sentences and we should not jail these folks.
When these habitual, repeat, violent offenders — this is what we are talking about here, this is what the bill is all about, the bill is not about the administration of jails — live in communities they choose to live in, they create mayhem. They create havoc. They create a lot of pain. They make our streets and our communities unsafe.
My question to you is do you not think that by sentencing them to longer terms and putting them in jail for a little longer period of time we could keep the communities safer from these folks? They are in there for longer periods of time, number one; and number two, maybe we can look at the opportunity for the penal system to rehabilitate them if they, in effect, are there for the longer periods of time?

Mr. Rudin: First, we should keep in mind that one of our concerns is the mandatory minimum section. People will fall afoul of that section whether they are first offenders or repeat offenders. We should not think that the mandatory minimum section is going to capture repeat offenders. We have a number of cases where we have clients who have no criminal records, who made an awful mistake and are now in jail for one or four years. That for me is the starting point. This is different from the dangerous offender issue.
The other thing we have found is the creative use of conditional sentences, well-crafted conditional sentences, have had a real opportunity to change people’s lives. One of the things that we are involved with at Aboriginal legal services is we support a program called the Gladue Courts in Toronto. We have people on our staff who write reports about Aboriginal offenders coming before the courts. Those reports try and comply with the decision in Gladue. They provide information about the person’s background that often the court has never heard which helps explain why they are committing offences, and then comes up with some suggestions the court might consider for a way to deal with that person that might address those issues.
What we have found is when the judge understands why the person is before the court and where we are able to say, here are some programs that might work for this person; some of them are in jail. Some of them are not in jail. The judge can make that meaningful decision. A conditional sentence is a very serious sentence; it can be slightly less than two years — two years less a day. There are all sorts of conditions. People can be required to complete treatment. There can be all a lot done with a conditional sentence but that cannot be done with a mandatory minimum. That is one of the concerns.
Again, I do not disagree in theory. Could correctional services find a way to deal with someone who is sentenced to a three-year minimum? They could in theory. However, they are not dealing with it now. This bill will bring more people into the penitentiary system. If there is more money my sense is it will go to build more penitentiaries, not provide more programming in penitentiaries and that will not work.
My final point in this regard will be that we have on a number of occasions successfully presented the argument for defence counsel that it is easier to get meaningful programs in Ontario in the provincial system than in the federal system. We have had judges who have said, “I would normally send you to the penitentiary but I know you will not get anything there but I know you will get something with a 12-month or a 14-month sentence in the provincial system.” Again, this bill will remove that option for many offenders.

Senator Di Nino: I think we all agree that no piece of legislation will save those folks from problems and it will not solve the problem itself. There are a variety of different things that need to be done. To give credit to this government in the last two year, they have introduced a number of measures, particularly justice for youth or youth at risk, including quite a substantial amount of money for treatment. That is all part of it.
We are talking about the fact that there are bad people who need to be put away for longer periods of time and for the sake of the protection of society. Bill C-2 does not claim to be able to solve all those problems and I agree with you that there are other things that must be done.

Mr. Boyd, in your statistics on the recent survey in the U.S., you say that some 25 per cent — a lot of kids — of the sex was unwanted. We had statistics from the same report that my colleague, Senator Stratton, talked about. They said two things that really shook me up. First, girls aged 12 to 14 are the most vulnerable in these offences. They also said something that also struck me. They said that the reporting of sexual offences is very low. They used a figure of 8 per cent.
That is staggering in the sense that if it tells me if 25 per cent is the number of young women — as well as young men because this is not just about young women — only represents a reported 8 per cent or 10 per cent or a small percentage, this number is very large.
Would you not think at least for those cases, at least for those dozens, hundreds, maybe more, young girls and boys who are being forced into unwanted sex by someone who is more than five years older than them, this piece of legislation for that alone should go forth?

Mr. Boyd: The problem is with the other 75 per cent. The problem is that you have 75 per cent of the people saying we were in a steady relationship, the sex was wanted. They are saying this two years after the fact. Therefore, we are creating an instrument that might apply to the 25 per cent you describe but would not apply to 75 per cent of the population. The defence of five years is not quite good enough because, as I say, the interesting thing about that survey is that it points to tens of thousands of young girls, perhaps unwisely, likely unwisely, having sex at such a young age, nonetheless, having sex in the context of consent.
We have a full figure of 100 per cent. You are talking about the 20 per cent. I question the idea of using the criminal law in that context, where 75 per cent of the sex is consensual. It is a social problem. In my ideal world, girls and boys of that age are doing other things as opposed to engaging in sex.

Senator Di Nino: The bill does not deal with the young girls and the young boys. It deals with the older partners.

Mr. Boyd: Yes, it does, but again, they do not –

Senator Di Nino: I am saying that I have no problem justifying the fact that we are telling older men and older women, as the case may be, older partners, no; it is not permissible under the laws of this country to have sex with a child. That is really the issue.

Mr. Boyd: It is a bit like, in another context, marijuana law. We are telling people it is bad, it is illegal, do not do it. For the last 40 years, 50 per cent of high school students have done it so we want to pretend there is an interesting line that we draw between one activity and another.
Here we are saying, “Don’t, do it; don’t engage in sex under the age of 16.” It is good advice, but when people do not follow it, should we treat them as criminals? Should we treat people who they regard as lovers and significant others as criminals?

Senator Di Nino: I am sorry, sir, this is not what this bill says. This bill does not tell young people not to have sex. This bill is telling partners who are five years or more older than the children — and I suspect some of them are much more mature, but the vast majority of them are still children — you cannot have sex with a child. It is the adult we are attacking here, not the child.

Mr. Boyd: Yes, and I just reiterate that the problem with that is it is not the way the young girl sees it. Many of these kids are kids with difficulties, but we are not solving their problems by charging their partners, however inappropriate we might see their relationship as being.

Senator Campbell: My first question was alluded to by a previous witness, Mr. Mauser, that he believes in statistics. Would it be fair to say that you can make statistics, lump them together, take different categories, put them all together and make them say whatever you want?

Mr. Boyd: Yes and no. Some statistics are reliable and make sense. We can say that the homicide rate has really fallen. We can venture reasons as to why this is so.
Yes, there are circumstances where we say violent crime has gone up 10 per cent or property crime has gone down 10 per cent. We do a disservice to the Canadian public by not breaking it into its constituent elements and asking a number of fundamental and critical questions about why it that certain rates go up and down. It has to do with people not reporting, with police and policy enforcement decisions. The rates and the reality can be quite different.

Senator Campbell: For some reason, this document, the crime trends in Canada, seems to be a real favourite here. It is clearly a best seller.
I will give you an example. From 1998 to 2002, the firearm-related violent crimes dropped 10. It went from 36.6 to 26.8. Would you consider that significant given that that is a four-year period?

Mr. Boyd: No.

Senator Campbell: From 1998 to 2006, it went from 36.6 to 31. It has gone up a little, then down, down, down, up, up, up and then down. Is that significant? That is an eight-year period?

Mr. Boyd: No; it depends. Typically, with small numbers, you have to have something pretty dramatic before you see significance.

I am pleased to have the opportunity to speak with you this morning regarding Bill C-2, The Tackling Violent Crime Act. My general observation of the Bill, an attempt to address the amalgam of firearms offences, dangerous and high-risk offenders, impaired driving, and the age of consent, is that it is not motivated by the best available evidence regarding the effectiveness of various kinds of sanctions in responding to crime. Instead, it is a patchwork quilt of somewhat moralistic and punitive sentiments, applied to these rather disparate issues of firearms crime, the classification of dangerous offenders, drugged driving, and adolescent sexuality.

I’d like to be as precise and evidence-based as I can in responding to the proposed legislation, as I view this as its principal weakness. My two greatest concerns flow from the reverse-onus provisions to be employed in dangerous offender hearings, and the raising of the age of consent from 14 to 16 — albeit with the caveat of a less than five year age difference in place as a potential defence for the latter, as outlined in s.150.1 (2.2 and 2.2). I am supportive of increased penalties for impaired driving, and for attempting to control existing loopholes in the law, though I do have a number of practical concerns about how the legislation might actually change existing practice, and how impairment by cannabis is to be judged. I have similar kinds of concerns – about the limited extent to which changes will impact current practices — with respect to amendments to firearms legislation.
I begin with section 753 (1.1) of the Bill:

If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and sentenced to at least two years of imprisonment for each of those convictions, the conditions (of dangerous offender status) are presumed to have been met unless the contrary is proved on a balance of probabilities.

It is, of course, these last few words that are problematic. It is not at all clear why the traditional protection of proof beyond a reasonable doubt should not apply in such circumstances – no evidence is put forward to justify such an extraordinary departure from a longstanding tradition of protection of individual rights, where liberty of the citizenry is at stake. The Ontario Court of Appeal’s judgement in R. v. D.B., currently before the Supreme Court of Canada, would suggest that this section of the Bill would not only be likely to face the time and costs of a constitutional challenge; it would also be likely to fail. And, again, to what end? There is no demonstrable benefit of deterrence in this reworking of the burden of proof, particularly in an instance that dictates the possibility of a deprivation of liberty.

The age of consent amendments are presumably motivated by concerns about the predatory conduct of some men, in relation to young women between the ages of 14 and 16. But there is no available evidence, from a variety of jurisdictions around the world, to suggest that setting the age of consent at 16 leads to less sexual exploitation of the young, particularly sexual exploitation of young girls.

We do, however, have evidence of relevance with respect to this issue. Survey data indicate that about 25 per cent of both male and female adolescents engage in sex before the age of 16, in what is most often self-described by the participants as a consensual context (Manlove et al., 2006). Further, and more to the point of the current legislation, approximately 25 per cent of females who engage in sex before the age of 16 do so with a partner who is more than five years older than they are. In other words, in every year tens of thousands of young Canadian girls, about six per cent of all females under the age of 16, engage in sex with males who are more than five years older than they are. The results of a recent survey in the United States indicates that the sex was unwanted for these young women in about 25 per cent of all cases; the survey was carried out at least two years after the event, with male and female participants aged 16 to 24. The survey also indicated that girls who have sex with older men before the age of 16 are proportionately more likely to have teenage births, and not to graduate from high school.

Social and educational difficulties are more likely for females who engage in sex with men more than five years older, but is the criminal law the appropriate response? This is a social problem, and criminalizing the men who are the partners of these young girls misses the reality that in most instances these are not sexually predatory relationships; an overwhelming majority of these young women, two years after the event, do not regard themselves as having been the victims of a criminal offence. Further, in about half of all these cases sexual intercourse took place with a person with whom they were “going steady”. In these circumstances the criminal law seems more likely to create harm than to be of assistance.

With respect to impaired and drug driving amendments, I will say first that I support changes to increase penalties for impaired driving causing bodily harm and death. Although there are rarely convictions for such offences, even in circumstances where impaired driving leads to fatalities, it is important symbolically to make the point that this kind of harm is analogous to other kind of offences against individuals where bodily harm and death are the consequences of some form of criminal intent. In every year in Canada there are twice as many deaths due to impaired driving than to murder or manslaughter – and yet we rarely apply the same standards of culpability to those who engage in such conduct.

Having said this, however, I am not sure how the legislation will significantly alter current realities. In British Columbia the routine response to impaired driving is to issue 24 hour roadside suspensions; this is done because the time and resources required to process impaired charges are so substantial that the exercise of doing so will only be undertaken in the most egregious of circumstances. Because of the size and the social and economic diversity of the population who commit this offence, we have an extraordinary body of impaired driving law, and an extraordinary degree of concern about the rights of impaired drivers, relative to many other accused within the criminal justice system.

The consequence of this reality is that law enforcement has been made more difficult. I am not at all sure that the amendments will serve to make enforcement more effective. In fact, additional requirements regarding the testing of impaired drivers seem only likely to fill the pockets of defence counsel, as they will understandably question the science behind these new techniques of enforcement. Additionally, the testing of cannabis impaired drivers is more complex than it may appear. There is, of course, a difference between the detection of cannabis in a person’s metabolites, and the detection of recent impairment by cannabis. The only reliable test of recent impairment by cannabis appears to be blood serum testing, and even this test, when given to regular users of cannabis, is not able to pinpoint the time of consumption more precisely than within a 24 to 48 hour window. I might add that regular users of cannabis constitute the population that is arguably most likely to be apprehended for driving while impaired by that drug. Again, lawyers will profit from this legislation, but it is not clear that it will have much impact on rates of driving while impaired by alcohol or other drugs.

Finally, I’d like to focus on firearms offences, and the mandatory minimums that have been proposed. We already have mandatory minimum terms, but these new proposals would generally increase the term of the first conviction from one year to three years. While handgun crimes represent a significant problem and have constituted a greater percentage of homicides in Canada during the past 15 years, it is not clear that the mandatory minimum will stem the violence that we currently see on Canadian streets. I would be supportive of attempts to take all handguns out of circulation; as dangerous commodities, they seem considerably more threatening to the population at large than most currently illicit drugs.

My concern about the legislation is not because of any reluctance about getting tough with gun violence – my reticence flows from questions about the practical consequences of doing so. Let’s consider the young men on the streets of Vancouver and Toronto who are carrying guns as part of a criminal lifestyle, ready to use lethal violence against their adversaries, or even friends over business issues such as failure to pay, theft, competition, and the marketing of defective products. And then there are the more mundane, and perhaps even more common kinds of handgun shootings, prompted by personal issues such as perceived insult, loss of face or jealousy.

In all of these circumstances there is one constant: young men who are prepared to shoot each other are far from worried about whether the penalty will be three years instead of one year, or five years instead of three, or even life imprisonment, with no possibility of parole for 25 years. They are already risking their own lives, as a part of doing business. Is there any evidence that mandatory minimum terms will serve to make our streets safer? No, not at all. In fact, if you search either of the two major criminological databases, Criminal Justice Abstracts or National Criminal Justice Reference Services, you will find many evidence-based articles about the impacts of mandatory minimum sentences in the United States. I engaged in this exercise recently, and could not find a single article that had positive findings – or expressed positive sentiments about these approaches. This is not because criminologists are woolly headed liberals – far from it. It is simply because the evidence in opposition is so overwhelming. The minimum terms don’t deter; by removing judicial discretion, they inevitably have a tendency to incarcerate unnecessarilly– as many have said about this problem, one size does not fit all. Additionally, mandatory minimums are extremely costly, leading to unprecedented rates of incarceration in the United States.

There is little doubt that mandatory minimum terms of imprisonment have dramatically increased rates of imprisonment in the United States, but have done so without impacting the crime rate (Zimring, Kamin and Hawkins, 1999). Unfortunately, most of this initiative is posturing and bravado – claiming to get tough on crime leads to increased rates of incarceration, but does not make our streets more safe.

I am organizing, as a member of the Scientific Commission of the International Society of Criminology, a series of panels regarding drug use, drug policy and crime at this upcoming conference. The conference link is below:

http://www.worldcongresscriminology.com/index.asp?pagina=prog&idioma=en

More specifically, I am seeking presentations for the following panels:

Youth, Drugs and Crime

The Future of Prescription Maintenance and Safe Consumption Sites: Emerging Empirical Evidence in a Global Context.

Medical Marijuana Use: Therapeutic Value, Regulation, and Issues of Distribution

Stimulant Use and Abuse: Emerging Trends, Effective Treatments, and the Possibility of Maintenance

Organized Crime and Distribution Networks: Lessons to Date from the New Millenium

If you are interested in making a presentation in Barcelona this July, please contact me directly, nboyd@sfu.ca. The deadline for submission of abstracts is May 1, 2008

What to do about cannabis law? In November of last year the Harper government brought forward Bill C-26, an enactment that would mandate minimum jail terms for those who grow and/or distribute marijuana. In November of 2003 the Martin Liberals had introduced Bill C-17, a proposal that would have reduced penalties for marijuana possession and small-scale cultivation, but would have increased the potential maximum term for cultivation from 7 to 14 years.

What lies behind these proposals? How are we to read their intent, and what are the likely consequences? First, let’s acknowledge the best available science. Marijuana is a minor public health irritant, when placed alongside the likes of either tobacco or alcohol. The drugs that many of us consume every day – the socially acceptable drugs of western culture — are more likely to produce premature death than cannabis is, and taking past, current or future rates of use into account doesn’t alter this finding in the slightest. Granted, cannabis is not the benign food for the mind that some of its most enthusiastic supporters may claim, but if it is to be deserving of criminal censure we had better give serious thought to the criminalization of a wide range of psychoactive substances, from coffee to chocolate, and from tobacco to fine red wines.

So much for empirical reality. We are often not faced with rational choices in the world in which we live. What advice would I give to the Minister of Justice, as he wrestles with Bill C-26? First, this bill will create jobs, both in prison construction, and also within the prison itself. Best estimates suggest that Bill C-26 will increase provincial prison populations by about 25 per cent, just to house the additional marijuana growers. Marijuana offenders currently constitute about 3 per cent of all those in provincial prisons; this initiative would swell their ranks to nearly 30 per cent – and require millions of taxpayer dollars for building additional facilities.

The Bill will also increase the price of cannabis, as the increased risks of doing business are passed on to consumers (this has been the experience in the U.S., where prices are typically 50 to 100 per cent higher than in Canada). And the violence of the trade will also likely increase, given the greater risks of imprisonment (again, this has been the American experience). In sum, I cannot find any rational reason to recommend Bill C-26. Mandatory minimums for cannabis don’t add up. Self-report data indicate that there continues to be a greater rate of use of cannabis in both Canada and the U.S., where prohibition reigns, than in the Netherlands, where the “herb” can be purchased in “coffee” shops. It is good social policy to discourage the use of cannabis, particularly among young people, but when the best available evidence points to the costs of policing, courts, and corrections as counter-productive, we should probably resist the urge to follow the lead of our southern neighbours.

The Liberal’s proposal, Bill C-17, deserves more serious consideration. The Bill followed the Senate report of 2002, which had recommended licensing and regulating marijuana use and distribution within Canada, albeit with significant penalties for export to the United States, or to other jurisdictions. Politicians in the House of Commons could not bring themselves to the arguably radical conclusions of their less accountable colleagues in the Senate. They fashioned a political compromise. Tread lightly on the adult users, whether they are in possession, or growing for their own needs – those in possession of less than 15 grams would face only fines, as would those growing up to three plants. But at the other end of the continuum the Liberals had a different message. They proposed increasing maximum terms for cultivation to 14 years, suggesting that it was not adult use of the drug, but large scale commerce that was properly the target of the law. Never mind that even three years was an extreme penalty for growers – the optics of the proposal were what counted.

This all sounds reasonable enough. Attack organized crime, and forget about the use of this drug by consenting adults. The problem with this approach is that most of those who grow and distribute cannabis are not particularly dangerous individuals, deserving of conviction and imprisonment. A recent RCMP study in British Columbia, canvassing more than 25,000 cultivation files, revealed that weapons are present in about five per cent of all seizures. In other words, most of those who grow marijuana could be defined as organized criminals, but simply because it is necessary to be at least somewhat organized in order to get the product to market. They are not what most of us think of when we think of organized crime.

What to do? If I had to choose, I’d say that Bill C-17 would be preferable to Bill C-26, but that much is obvious. Bill C-17, if it went a little further, eliminating penalties for small-scale use and cultivation, could work to reduce the profitability of the trade and its untaxed revenue. As long as the prohibition of cannabis remains on the books, we will not run afoul of the UN Convention of 1961 and the subsequent international conventions; this is a lesson learned from the Netherlands and a number of other European jurisdictions. The United States may not like our approach, but let’s remember that this is the country which first produced the modern tobacco cigarette, thereby giving rise to the most deadly drug — and drug cartel — that history has ever seen.

This article first appeared in Lawyers Weekly, Lexis-Nexis, January 28, 2008, and is reprinted from that source.

Ryan Bergen from Montreal Canada writes: I understand that violent crime has tapered off in absolute terms and this has been credited to changing demographics i.e. there just aren’t as many young people around to commit crimes as there once were relative to the population as a whole. Is this accurate? So then what about the number of crimes committed in relation to the size of the smaller cohort. There may be less violence in Canada than in the past, but are Canadians in fact less violent? Thanks.

Demographic shifts do explain a good deal of the variation in homicide rates, and the rates of other kinds of serious violent crime. In the mid 1970s young men (those between the ages of 18 and 29) represented 10 per cent of the Canadian population; today they represent about 5 per cent of our population. This demographic category is responsible for close to 70 per cent of all violent crime, and so it follows that when their numbers shrink, the crime rate drops. Canadians are no more or less violent today than they were 30 years ago, but the character of the violence has probably changed. We have less domestic violence, for example, but a greater number of homicides involving handguns (and fewer involving rifles or shotguns).

Russ Barth from Ottawa writes: How does the government plan to implement these new sentences on the possession and cultivation of marijuana, when the prohibition laws have been repeatedly ruled unconstitutional?

The “prohibition laws” have, sadly, not been ruled to be unconstitutional. The Supreme Court of Canada, albeit in a split decision, has, relatively recently, upheld the criminal prohibition of marijuana — and Supreme Court decisions bind all courts in the country. Recent provincial court decisions have no binding impact on any other courts.

KS from Toronto writes: Proponents of tougher sentencing usually site the deterrence factor as a major benefit. Is it possible to quantify this? For example, would someone be half as likely to commit a particular crime if the maximum penalty was ten years instead of five? Also, is there a point of diminishing return where increasing sentence length produces no significant increase in deterrence?

There have been many attempts to quantify deterrence. There is no conclusive evidence, for example, that the death penalty deters, or that 10 years imprisonment is more effective than five years imprisonment. There likely is a point of diminishing return — a point that may well begin much more early than the advocates of very long sentences would suggest. Certainty of apprehension is a more important factor in deterrence than length of sentence — and most of those involved in the upper echelons of organized crime have little risk of apprehension.

Ernie Engbrecht from Canada: When I go on the Justice Department website, it appears to me that our present government is heading down a slippery slope in contrast to the studies on their own website. Why does our government insist that deterrence works for a young offender? Where is the data to back up their claims?

The current government’s approach to crime is not evidence-based, but appears to be ideologically driven. Just as communist regimes engaged in ideologically driven “re-education” camps, the Harper government is creating a dubious “science” of human behaviour, for which there is little empirical support. Their approach is modelled to a large extent on a number of failed experiments south of the Border, engineered first by Ronald Reagan and now continued by George Bush — mandatory minimum terms for drug offenders, reverse onus provisions, erosion of parole, and privatization of prisons.

Jonathan Lyster Powell River, BC Canada writes: In other countries such as Britain, attempts at alternative methods of dealing with drugs, users, and dealers have been made, such as giving addicts free methadone or even heroin. What are the results and consequences of these programs, and would they work here in Canada?

Prescription heroin has, for a relatively small group of addicted heroin addicts, been a highly successful program, in Germany, Switzerland, and the Netherlands; both the health and social functioning of users has improved markedly when they have had access to a relatively inexpensive source of heroin; there is a substantial range of academic literature documenting the success of these programs, published in the most prestigious of medical journals. The NAOMI trials, currently underway in Vancouver and Montreal, will likely demonstrate viability within a Canadian context. Methadone has also been a useful form of maintenance for some users. For all intravenous users, however, the best outcome remains abstinence.

Robert Hamilton from Toronto writes: Practically speaking is law enforcement really ‘going after’ addicted users? If not then why does anybody have a problem with stiffer sentences for drug dealers?

The reality is that the folks who appear in criminal courts charged with trafficking offences are overwhelmingly not major drug dealers. They are typically user-dealers, or small scale dealers. Only a tiny fraction of those who are charged are getting rich from dealing illegal drugs. Law enforcement officers would very much like to be securing convictions for major drug dealers, but this just doesn’t happen very often.

Albin Forone from Toronto writes: I remember Prof Boyd from some time at Simon Fraser, and am glad when his views get public air time. Generally I agree with him on how many ‘crimes’ could be harmlessly and cheaply decriminalized or licensed. Even so, it seems to me that however much you ‘take off the table’ as criminal behaviour, there remains a ‘criminal element’ that will seek out and try to profit from the real crimes that must reasonably be kept on the books. For example, Canada will continuously need and want immigration, but some component of every immigrant wave in this country has formed gang organizations and moved into whatever can be done illegally for profit. So for me, indeed let’s prune the Criminal Code, but let’s also put the hammer down very hard on those who continue to violate it. Any comment appreciated.

I think it is both fair and accurate to say that a criminal element would remain, even if the illicit drug trade was to be regulated in a non-criminal context. Terrorists, for example, would continue to find commercial opportunities for fraud and theft in many other contexts. But I don’t think we should be blaming new immigrants for creating crime waves. While it is true that “some component” of many of our waves of new immigrants becomes involved in crime, the native born crime rate remains higher than the crime rate of immigrant populations.

Alan Doyle from Canada writes: Do you think that Canada will ever separate marijuana from other drugs in terms of illegality? I am tired of seeing pot lumped in with meth, as if they were similar. It seems like equating an illegal right turn with vehicular homicide, and nobody seems to make a coherent argument for why this is the case. Is it just puritan thinking or is there a legit reason for this? Thanks.

One could argue that the Controlled Drugs and Substance Act of 1997 has separated marijuana from other drugs, albeit not in terms of illegality. You are right to say that marijuana is an entirely different drug — and social problem — than crystal meth. And our courts do view the two drugs quite differently. Marijuana is also a good deal less dangerous than alcohol and tobacco, even when rates of use are taken into account. It is ironic that those who literally push tobacco in third world countries are seen as contributing corporate citizens, and those who sell marijuana to willing consumers are seen as entirely different, and deserving of our moral condemnation.

Bert Russell of Paradox B.C. writes: If young impressionable youth can see direct consequences for law breaking they will generally not break it. Right now, some have no respect for the law or themselves - they are being raised in a society of parents who are too busy, permissive or have lacked a good role model themselves to know the benefits. There are people who will try to break the law and get away with it and who are willing to accept a slap on the wrist as a license to keep on breaking the law. I believe the vast majority of Canadians will accept law and order (maybe grudgingly sometimes) but will obey because they learn to value respect and weigh consequence. Any thoughts, Professor Boyd?

Laws should deserve respect, but in Canada we have, historically, endorsed the criminalization of homosexuals, corporal punishment in schools, the confiscation of the land of Japanese Canadians, and the de facto imprisonment of aboriginal Canadians in residential schools. Laws that criminally prohibit cannabis and simultaneously support the use of alcohol and tobacco cannot easily win the respect of young people — this has been our reality in both Canada and the United States for the past 30 years.

Robert Hill from Ottawa Canada writes: Dear Professor, I am currently taking a course on criminal behaviour and one message that our professor is emphasizing is that tougher sentences do not reduce crime and in some studies has been shown to make it worse. My question then is if research shows that incarceration and deterrence are ineffective tools at reducing crime then why is the general public seemingly oblivious to this message? And why is it the only comments we hear from politicians concern getting tough?

I can only say that human beings are not nearly as intelligent or as insightful as is often claimed. We all go through life with cultural blinders, and this is another example of the phenomenon. It is also apparent that the messages that you receive in institutions of higher learning are often messages that are resisted by those with the power to act on them.

Rob Johnston from Guelph writes: Why has such a failure of an idea been so successful at staying alive? When Bentham found a high occurrence of pick-pocketing at public executions, shouldn’t that have been enough? When study after study shows stiff sentencing doesn’t deter, how many centuries of proof do we need? That idea has been shot down, can’t people just move on admit that they just think that people should be severely punished for breaking the law? Why the need to justify it any further?

You make a good point. Punishment has very little to do with deterrence; it has much to do with community denunciation of conduct that we consider intolerable.

Mungo Shuley from Lower Mainland writes: I would like to ask professor Boyd if our current government’s and previous government’s reluctance to abandon the failed US style war on drugs is due strictly to US pressure or are there other factors in play?

The current government essentially endorses the U.S. war on drugs, albeit in a slightly less punitive format. The Liberals, the NDP and the Bloc have all, historically, offered quite different alternatives to the Harper government’s approach to crime. In more than 40 years of observation of federal governments and their articulation of criminal justice policy, I have never seen a government that is more averse to available evidence, and more committed to a rigid, ideologically-driven agenda than the current one. Their policies are, however, very much in line with the vision of George W. Bush and his government.

Anne-Marie McElroy from Ottawa writes: It seems that the general public is not aware of the principles underlying sentencing of crimes, such as the discretion that a judge has to decide the appropriate sentence for the particular individual for that specific crime. Given that the Supreme Court seems to have deferred these sorts of sentences to the legislature, it seems that the issue is in the hands of a parliament looking for political gain through questionable policy, with an ill-informed public. How do you think lack of awareness should be addressed?

I wish I knew. I do know, however, that there is much less media dissemination of criticism of criminal justice policy than there should be. In part, this is because the status quo tends to be protected by those who can control the media. It is an axiom of bureaucratic and corporate life, I suppose.

R.C. from Toronto writes: I get the sense that if youth are incarcerated early they learn from more seasoned criminals and are likely to re-offend, but I don’t want to see them go unpunished. So what’s the answer and how have ‘rehabilitation techniques’ in prison/jail changed, if at all?

There are many promising developments here — restorative justice is probably the best known and the most hopeful.

David Andrews from Canada writes: The recently introduced legislation which aims to get tough on ’serious’ drug offences seems a bit watered down in terms of what we could expect from the Harper Conservative government. Should we expect to see Mr. Harper get even tougher on drug crime in the event that his party wins a majority? More specifically, should we expect marijuana trafficking that is not connected to organized crime to be targeted for harsher penalties by this government?

The penalties that the government has introduced already represent a marked departure from existing norms. Provincial jail populations will increase by almost 30 per cent, just to house marijuana growers and distributors. The question of whether marijuana trafficking is connected to organized crime will help fill the pockets of defence lawyers. By definition, any sale of marijuana to another person is an organized criminal activity. The Harper government’s proposed legislation will increase profits for marijuana growers and dealers, and defence counsel. The losers will be the taxpayers of Canada, who will be faced with the billion dollar tax bill required to build the new prisons to house these offenders.

Reprinted from The Globe and Mail Online, November 23, 2007

The federal Conservatives have reversed a 30 year old policy of asking the U.S. for clemency in cases of Canadian citizens awaiting execution in the United States. We have traditionally asked U.S. jurisdictions not to carry out the sentence of death in such instances; successive federal governments have been opposed to the death penalty, on a number of grounds: it does not deter homicide, it is barbaric, and it is increasingly out of step with all civilized nation-states on the face of the earth.

So it is disturbing that the Conservatives appear to be so comfortable with the idea of the U.S. imposing lethal injection on a Canadian citizen. But the logic expressed by Stockwell Day is even more remarkable. “It would send a wrong message. We want to preserve public safety here in Canada”, Mr. Day announced.

What a tragically inept comment. What has the seeking of clemency to do with public safety in Canada? How does clemency, and its necessary consequence in this instance — life in prison without the possibility of parole — serve to diminish public safety? We live in very troubled times; it’s bad enough that a man who believes the earth was literally created in seven days is a Minister of the Crown; it is especially sad that he has so little comprehension of the issues involved in this case.

The federal Conservatives were acting in my economic interests when they announced a cut in the GST from 6 to 5 per cent, effective January 1, 2008. As a relatively high income earner, I will receive ten times as much cash in my pocket next year (about $1,000) as will an indvidual earning $40,000 (who will take home little more than $100). In the interest of my own short-term economic well-being, I should support the legislation; my lack of support is, in all fairness, a statement against my economic interests.

The GST is, after all, a tax on consumption, and higher income earners necessarily consume more in the way of goods and services. If a government gets $34 billion of its $50 odd billion in tax cuts from a GST reduction, they may as well come out and tell us what they believe: that they want the wealthy to have a bigger share of the pie than they already do (never mnd that the top one per cent of Canadian income earners have almost doubled their share of the economic pie in the past 25 years, from about 7 to 14 per cent).

A government that was concerned about helping the average Canadian, or the so-called “working people” of Canada, would have ensured that those of more modest means received at least as much benefit as those with greater wealth, or higher incomes. And there are so many more deserving projects than a cut in the GST. Think of what $34 billion could do for the health care system, or housing the mentally ill and substance addicted homeless in the cities of Vancouver, Toronto, Montreal, and elsewhere. Think of how the $15 billion in unnecessary corporate tax cuts could benefit disadvantaged children.

What’s most disturbing is that polls are telling us Canadians generally approve of the Conservative mini-budget. Perhaps this is because most Canadians are grateful for whatever small amounts the Conservatives see fit to provide them with; they should know, however, that there are alternatives — that there are many states in Western Europe with more progressive tax regimes, better housing for all, better health coverage, and more social stability. We should have better choices.

I have spent the past few days in London, and have noted that the city’s restaurants, bars, and public buildings have been liberated from the ceaseless stench of tobacco. It is a remarkable transformation in a city where, until recently, a non-smoking restaurant was virtually an oxymoron. There are, of course, the little packs of addicts hovering about the entrances to most public buildings, but it is clear that the rights of non-smokers are finally beginning to trump the rights of smokers. It is almost a certainty that rates of tobacco consumption will begin to fall, as public consumption of the drug becomes more and more difficult, and more appropriately seen as an intrusion into the lives of others. Imagine — a meaningful step forward in the war against drugs, achieved without the sledgehammer of criminal prohibition.